People v. Virola

203 A.D.2d 164, 610 N.Y.S.2d 788, 1994 N.Y. App. Div. LEXIS 4096

Opinion

—Judgment, Supreme Court, New York County (George Roberts, J.), rendered May 5, 1992, convicting defendant, upon her plea of guilty, of grand larceny in the third degree, and sentencing her to five years probation, ordering restitution and directing her to execute a confession of judgment in the amount of $16,420 unanimously modified, on the law and the facts, to the extent of vacating the direction that defendant make restitution, and as so modified, affirmed.

The plea minutes disclose that in return for the entry of a guilty plea to the top count of the indictment and execution of a confession of judgment in the amount of $16,420, the court promised to sentence defendant to five years probation. At sentencing, the court was under the mistaken belief that restitution was part of the plea bargain, which belief was not corrected by the prosecutor. As the People concede, since the sentence imposed did not conform to the terms of the plea bargain, the portion of defendant’s sentence directing restitution must be vacated (People v Allen, 170 AD2d 686; see, People v Bright, 194 AD2d 479). However, the confession of judgment remains. Concur — Carro, J. P., Kupferman, Asch, Nardelli and Williams, JJ.